*1 720
lowing caption “Special under Provi- Insured contends that the record If, poses in the case genuine sions”: Action: before instant issue as Legal “Notice of fact, namely, of here- to material whether a bind Company payment makes loss under, ing liability uninsured representative or his denial of under the insured bodily coverage shall action motorist was made insurer so any legal institute part as to its of injury against person other constitute waiver on any organiza- legally noncompliance tion the notice responsible, for use of a insured’s with accident, per provision policy. cogent motor vehicle No involved copy of the which would complaint springs summons and or oth- suasive reason mind process er of the above-mentioned preclude application served in connection with such of legal applicable action to waiver immediately general principle shall be forwarded pertaining to auto legal policy provisions the insured Company by or his notice coverage. stat representative.” liability The facts mobile For reasons any foreclose ed, provision with notice argument comply noncompliance failed insured justify se per with this with forth did not provision notice reference to heretofore set of in favor entered successfully summary judgment action he prosecuted mo- insurer. against Dewey (the alleged uninsured torist). provision An notice identical of the issues none Having concluded Jersey valid in v. Insurance
held Roberts rendition joined warranted appeal on York, 244 of 457 S.W.2d Company New insurer, and favor summary judgment noncompli- (Mo.App.1970) and an insured’s basis for discovery absent other held to relieve an insur- ance therewith was sustention, the summa- this court holds that to uninsured respect with liability er re- hereby is ry judgment should Nevertheless, has coverage. motorist versed. jurisdiction other held at least one and cause remanded Judgment reversed notice compliance with an identical inconsistent proceedings further an being is waived subject provision opinion. Indemnity v. Travelers Crumley insurer. 654, Co., 667, 658-59 225 Tenn. 475 S.W.2d
(1972). point at this to draw appropriate
It is general principles applicable
certain The following liability insurance.
field in 45 recognized C.J.S. Insurance principle Jr., MOORE, W. Charles 1062, p. apposite: is (1946) “Ordinar- § Plaintiff-Respondent, liability insur- policy insurer under a ily, v. resisting recovery on precluded from ance policy provi- ground departure CORPORATION, MOTORS GENERAL forwarding respecting notice sions Defendant-Appellant. corporation, liability it has denied papers where No. 37015. particularly, More other ground.” some Appeals, Court of Missouri recognize jurisdictions from other cases District, Louis St. automo- provisions pertaining notice Division Three. may be waived liability coverage bile liability coverage 16, when it insurer denies Aug. 1977. lack notice. other than ground some Rehearing Transfer Motion for and/or v. Goudy, Auto Dixie Insurance Co. 12, Sept. Denied 432, 380, (1964); 382-83 Ark. S.W.2d Denied Application Transfer v. Indemnity Co. Hartford Accident 11, 1977. Oct. Ind.App. 127 N.E.2d
Armstrong, 125 (banc 1955); Washington Co., 252 Fire Insurance National Service (1969). 92-93 168 S.E.2d
S.C.
KELLY, Presiding Judge.
I. in Missouri impression In case of first defendant, Corporation, Motors General *3 of the Circuit judgment from a appeals Louis wherein the City of St. Court of Jr., Moore, was award- W. Charles plaintiff, $8,500.00 damages by jury a for what ed the failure was contends money to him an amount pay defendant pursuant entitled to which was Plan. Suggestion Employee defendant’s a At the defendant had all relevant times Suggestion (hereinafter referred to as Plan to “Plan”) promulgated which it its encouraged it whereby employees to on forms employees suggestions submit Forms” “Suggestion identified as made the defendant. A available them Plan, a “Suggestion,” according to was something speci- a “proposal to submit suggestion fied a was manner.” When sub- provided that pur- mitted on form it pose, the Plan stated that be for merit” so “systematically investigated be made wheth- sound decision would and was to be adopted, er should be by the Committee Suggestion reviewed (hereinafter “Committee”) up rep- made of the major departments resentatives of plant. suggestion If a adopted the was told the reason. suggester paid sugges- were to be after the Awards adopted and in effect. tion was Plan, According the function (1) sug- whether was to decide Committee eligible for submitted to it were gestions (2) amount of each award. awards and the mak- a formula for provided Plan by the adopted which were ing of awards formula, According to this defendant. sugges- resulting benefits from where the amount the award tion were measurable gross of the total sav- be one-sixth employee the division which the ings to period month fol- during the twelve worked McDaniel, E. Baer, James Barnard & up adoption suggestion, lowing Banta, Louis, for appellant. J. Doris St. $10,000.00. a sug- If maximum award of Gerhard, Louis, savings sugges- respon- gestion resulted George St. R. but a loss in the same ter’s division dent. division, be strike to a no 1971 model station to another savings produced plant from shipped in no to have resulted considered during to or covered prior period of the award would and the amount strike, 23, 1970. September 15 to November upon sugges- When based other benefits. capital expendi- saving tion resulted in a production on the 1971 models re- When ture, equal amount would one-twelfth sumed, production problems with the new savings, subject total but again problem became evident. One tail-gates $10,000.00. the maximum award of Where compartment caused the rear floor resulting savings there were no measurable long. wagons being for the station too pans adopted suggestion, award with the condition created This “in would be determined the Committee assembly tail-gates hanging light all concerning available information *4 com- on the rear line and the installation its other All benefits.” decisions weatherstrip re- pans of a partment floor final; however, Committee were if at tail-gate of the prior hanging tainer to the time employee reopen sug- an wished to The wagon. the station on the rear of gestion present to new or additional infor- so that the problem became severe defend- mation, Committee, discretion, at to up special group ant to set rework might review its decision. compartment down pans cut the rear floor length in- proper
to the before were The stalled. fabricator was notified of II. problem January 1971 it was Plaintiff, employee of the defendant corrected and the defendant disbanded the at its St. Louis plant body depart- special cut group rework it had formed to 1953, was, ment since working as a Nevertheless, proper length. them to the repairman metal finisher on the “night compartment rear floor pans which shift, shift” or second i. e. between 4:30 long occasion, too reappeared on when P.M. on one 1:30 day following. A.M. the did, necessary became to shorten actuality two sugges- —in prior stages them to installation or at other upon bases his claim in this tions — of production wagons. of station case, was the of production result some compartment When floor pans rear problems the defendant was ex- admittedly too long their appearance made subse- periencing with a newly designed tail- quent disbanding special of the re- gate gate as “clam” —identified —it group, work some were cut off or ground installing on its 1971 model Chevrolet sta- off proper length body shop wagons. tion installation; nevertheless, prior some type This new “clam” tail-gate was con- escape continued to detection and went half, so structed the bottom when in through the until production line the end open position, went down beneath the year July the 1971 model 1971. wagon top floor of the station When the was torn out weatherstripping portion glass part into the portion tail-gate, the lower of the repairs —the —ascended design roof of car. This was to enable Building were effected in the Final Process one to load unload the rear of the station (identified by as some witnesses “the mill” wagon from the standing rear while right alley”). “wagon others as up to the rear of the without vehicle Although part it was necessity leaning part over any tail-gates regular hang duties to open while it was in the position. line, assembly repairman he had taken
According out, to the evidence the 1971 tail-gates replaced parts model some some year commenced sometime in late August them and On two reinstalled them. one or 1970; however, early September repaired wagons due occasions he had station n inch together, keep gate about
“the mill” observed a number and had being adjusted tight. farther back while in “wagon alley.” them days worked for 2 and eliminated It has 1971, he became May, prior Sometime gate fitting the line and in excess down raking-off aware of the It extends n inch behind retainer hold. on station weatherstripping side, being place by bar on held in right to a lack of which he testified was due easy tire well. It hook on inside between the interior of the tail- clearance but I would recom- install and handle gate weatherstrip retainer on the permanent mend a more fixture be made right the rear of lower side of material, also made of alumi- of a smooth remedy He wagons. determined magnesium.” num or permission of his immediate problem. With and Mack supervisors, His Lance Charles made a tool or fixture out of supervisors he Alexander, that the tool be used directed ascertaining old files after two admitted Defendant has the second shift. a n inch clearance was re- approximately the first also used on shift that this tool was quired between the retainer approximately days, commencing portion and the interior the lower 7,May tail-gate to it to be lowered and permit raking raised without off the weatherstrip- meantime, took some In the *5 ping. made a second fix- measurements home and material he had at ture or tool out of some so protu- The tool was made that small home, it he completed and when was berance on one side of the fixture fit into it was used brought it where plant to the small hole in the skirt of the tire well spare The de- year. end of the model until the located on the of the right side station was used on that this tool fendant admits tail-gate. at the rear near the wagon time until the the second shift from that protuberance the was in the placed When run, July, 1971. of the model end spare hole tire well one end against part body rested of the auto tool was suggestion plaintiffs original When Tisoto, the end to maintain the other served the de- D. by Mr. James received Coordinator, the interior of he clearance needed between as- Suggestion fendant’s portion tail-gate lower the number signed an identification so that the weather- weatherstrip retainer investigation inquiry an then forwarded the by raising was not disturbed stripping plaintiff’s depart- of superintendent The fixture lowering tail-gate. ment, Young. Young replied of Mr. Mr. Jim tail-gate place adoption before of recommending inquiry to this on the rear of the and was bracketed reads: hung His comment suggestion. “ it over the wagon by hooking cross- gate keeps R/side . . . fixture pat protu- it a little so the giving bar and bottom) pulling in too close (at spare slip berance into the hole right at retainer strip weather crossbar tire well. have had a lot of trouble corner where we being pulled weatherstrip with rubber original According plaintiff, has This fixture out of crossbar retainer. started the de- suggestion being used considerably on the number cut down May and on early May, fendant the condi- down for jobs being knocked suggestion on the he submitted existing.” tion that provided the defendant form sug- form his According purpose. that Young’s advised reply Mr. also was: gestion he recom- suggestion was “In Effect” and " he and an Both difficulty in fit- mended award . eliminate . .to $300.00. supervisor Poling, plaintiff’s I have made Mr. Gene R. gate. tail ting wagon hangers on ones) charge of gate (old brazed and foreman jig using files small shift, time, signed and, at only second shift used on the second “Investigation Report” doing tail-gate form. rework before the instead shop was hung, did this and there- Because the award recommended was in fore not have a with the $100.00, excess of Mr. Tisoto also sent this Nevertheless, retainer. Bloemke, suggestion to Mr. Frank the Sen- fit, they got poor but tail-gate stated that Engineer ior Products of the Production this, nobody looking got at and the cars Engineering Department for comments. fit through and had 1,1971, replied Mr. Bloemke recom- July along further the “system.” corrected mending suggestion that be declined because: “This purpose defeats Bloemke, talking After with Mr. Mr. Ti- fixt, T/gate hanging W/S. retainer clear- soto, sent a letter Mr. Young about ance must be maintained by quality of August 1971, advising him that flange R.C.P. and rear crossbar.” plaintiff suggestion had submitted a second attaching both copies suggestions
On the same as date Mr. reply, Bloemke’s He Young letter. also advised Mr. submitted his second follows: shift with with the exception of with it. Below diagram. rear assembly may be It has worked for four weeks on second “ ture One . wagon n may . .1 have made will [*] even tailgates on 100% keep get any sfc accuracy, the required opening varying Cadillac [*] all G. desired opening improved even tho the n M. wagons, lengths. course. n fix- *6 Young was also advised of Mr. Bloemke’s months and never on the first only used on the second shift for a few claim (Mr. Tisoto’s) understanding that he had made the devices both suggestions advised Mr. grounds Production Mr. Lance currently that stated although Engineering Department Young and Mr. use, Mr. Bloemke. He also the tool and that Wilson, declined at the resulted shift. it was his claimed request in a Mr. better openings Gate fit for the it weatherstripping, cannot be re- right an out- poor sulted in a fit tail-gate side fixture due to which had be different floor pan later length.” corrected on. The letter concluded: “ “Please confirm” . . if and . 6, July 1971, On Mr. Tisoto forwarded the really a manpower savings was achieved plaintiff’s suggestion second to the Produc- determined, which can be legitimately tion Engineering Department for comment. please indicate.” However, any before reply was received 20, 1971, from this On or about Mr. inquiry, September and while Mr. Tisoto was Lance, during absent from illness, the course of a conversation plant due to Tisoto, plaintiff, with Mr. him plaintiff’s told that sometime in August, that fixture out even with the tail-gate advised his suggestions had been de- bottom, at he quarter-panel clined. After he that received this information been using gate plaintiff went and 5 fitters to Mr. Tisoto’s office and yard night every repairs and the fixture cut asked for suggestions. reconsideration of his at “item” least half or more and When Mr. Tisoto returned to office he that he it man.” what felt “saved at least a full place learned had taken and because He also Mr. he felt inclined confirmed that Moore made the to award some- fixture at his and de- thing supervisor’s request for his he suggestions consulted with Bloemke, however, poor Mr. nied that it fit per- Bloemke. Mr. caused as opinion suggestion sisted in his that claimed Mr. Bloemke. He recommended should declined. His reasons that “at more.” award least or $500.00 fixture; not a suggestion during it Mr. Lance testified defendant, by the plain- wagons produced with tion while he was familiar case that Cadillacs, eliminated exception was not familiar with suggestion tiff’s first he hanging op- delay in such suggestion difficulty and had never with the second operation production wag- and the suggestion second “on eration seen this tail-gates. and ons with defective May July line” at between anytime of 1971. that he alleged suggest- Plaintiff further September met pans ed floor for such station
The Committee suggestions. plaintiff’s length prior to reconsider to a standard assem- be cut meeting, attending suggestion Prior to committee bly, pursuant and that Barth, another Mr. Mr. up Tisoto and Carl described the metal plan he wrote member, assembly went to the Committee developed he and manufac- device tool shift) first to view the (during the tured, line together suggestion with his then in suggestion plaintiff’s it to the de- lengths, submitted pan floor Mr. Turley, the 1972 models. Del use on prescribed by the in the manner fendant shift in the one of the foremen defendant; suggestions these original tools shop, plaintiff’s one of located in the manufacture the defendant used how was used. Al- demonstrated repeated- he wagons; that has of its station he did not though present Mr. Tisoto was monetary reward ly made demand because his at- the demonstration observe by the defendant its promised [by employ- another tention distracted has failed and but that the defendant plan, him conver- engaged ee came up who monetary re- pay plaintiff refused Mr. another concerning sation matter]. ward; making suggestions that in used how the tool was Barth did observe $10,- aof promise relied on defendant’s Both Mr. Tisoto and wagon. the station award, but defendant monetary 000.00 plaintiff’s Barth discussed first tool Mr. Plain- pay has him the award. refused to Young Alexander and Jim Mack $10,- judgment tiff prayed it. something the line to learn about 000.00. Committee, meeting, at con- its Answer, its admitting after Defendant’s doing and in sidered what award make so business, status, corporate nature award was to be arrived at decided that the existence of plaintiff’s employment, “in of all available information con- light Plan, every denied each Suggestion benefits,” the its other alternative cerning petition. allegation the Plan were the *7 provided by formula were not enjoyed by the defendant benefits III. adopted The Committee the measurable. plaintiff’s supervisors of
recommendation on two the defendant relies appeal On and awarded $500.00. and foremen judg- trial court for reversal of the points accept to the award and refused Plaintiff erred: the trial court ment. These are that 23, on August this suit 1972.1 instituted 1) jury be- submitting the case in evidence that the amended, cause there is no alleged, petition, as Plaintiff’s making determination relying things, that on defend- Committee other among savings monetary was no measurable the re- that there suggestion plan and ant’s the use by the therein, to defendant developed money and of promised ward of which, guilty plaintiff’s suggestion metal or device tool manufactured mistake, and gross tail-gates all sta- bad faith or hanging when used on originally Court of petition to the Circuit was remanded 1. filed was in two the cause City it was on quantum where tried of St. Louis 2 the counts. Count sounded meruit petition, as amended. 1 of the the cause removed to court Count and federal where dismissed his second count and
727 2) entering Corpo in the In judgment Rope Wiles v. Union Wire none.
$8,500.00 ration, (W.D.Mo.1955) because there is no evidence 134 299 the F.Supp. savings the defendant realized court without an prejudice trial dismissed $51,000.00, which, complaint amount of ac- which failed employee’s the amended cording allege any agreement, express implied, to Instruction 6 neces- No. was to .. compensation employee’s to authorize an in that use of an sary award discovery, holding complaint
amount. failed meru- quantum a cause of action
to state can because distinguished it. Wiles be IV. was no promise compensation there respective rights Decisions and employer suggestion into if the of an liabilities and an employer employee furthermore, use, the trial there court arising suggestion plans under employee “shop rights” barred recov also found However, parties are ap- few. to this discovery ery where made peal proceeded on the an theory that when employee working while for the shop employee response submits a suggestion in employer and was revealed to without him Suggestion to a employer Plan any express implied agreement for com of the suggestion makes use in his business pensation. a contract comes par- into existence. Both
ties cite Carlini v.
Plaintiff
United States Rubber
submitted his claim
Co.,
501, 154
Mich.App.
(1967),
8
theory pursuant
N.W.2d 595
breach
contract
to Carli-
adopted
theory
for the
Co.,
courts of
ni v. United
supra.
States Rubber
To
of Michigan.2
State
For those interest-
theory
recover under that
incum
became
ed in the
results reached
other
upon
courts
bent
him to establish
the evi
considering this question,
see: Anno. 40
dence that
arriving
Committee in
at its
A.L.R.3d 1416.
party
Neither
has
cited
was “grossly
award
mistaken” or “failed to
decisions of the appellate
courts of this
good
use
faith.”3 He defined the term
State which have
question
considered this
“grossly mistaken” in Instruction No. 4—his
independent
our
research
us
has led
glar-
verdict-director —as
is
a “mistake that
split
authority
ruling
prize-winning
There is a
litigation
relative
these
cases
contest
Carlini, supra, supports
making
Plans.
a breach of
and contest rules
decisions
theory.
Westinghouse
judges
except
contract
Schott v.
Elec
contest
final and conclusive
279,
fraud,
mistake,
Corp.,
443,
gross
tric
436 Pa.
259
A.2d
40 A.L.
where
lack of
(1969)
good
attempt
recovery
change
R.3d 1404
faith or
authorized
under a
an-
theory
unjust
employ
provi-
rules
enrichment
nounced
of the contest. This same
where the
rejected
suggestion
suggestion
sion that the
commit-
ee’s
award of
but was sub
suggester,
597,
sequently
employer.
Grepke
tee is conclusive on
the Carlini
used
v.
held,
Co.,
(7th
Court
154 N.W.2d
referred to deci-
Electric
General
ingly noticeable.” Defendant has new clam-type that definition.4 be with the tail- lenged problem The issue to fold 1) in first disposing hang securely resolved the fixture in use gate: is adduced the tail- plaintiff only top portion Point whether suffi- the fastened use of his part wagon cient evidence that defendant’s of the station gate to the back in a benefit which was suggestions portion resulted bottom “more or less and left the measurable, re- 2) i. e. whether the defendant haphazard,” weatherstripping the in gross savings alized to the division portion when the lower being was torn off deciding the worked. In employee which tail-gate was raised because of the issue, e., case this i. whether submissible between the was insufficient clearance erred made and whether the trial court right bottom weatherstrip retainer on the motion for the defendant’s sustaining not He wagon. the station conceded side of of all of the directed verdict at the close suggestions his two purpose that the sole evidence, given be the bene- plaintiff must be- required clearance was to maintain fit of and all reasonable inferences any retainer tween be from the evidence and which can drawn tail-gate portion interior of the lower theory with his which are in conflict and lowered so that as it raised case, evidence must be and defendant’s not be raked off. weatherstripping would case. disregarded unless it aids We conclude from the evidence 226, Nuelle, 537 S.W.2d Kaelin v. 232[6] plaintiff’s suggestions meant (Mo.App.1976). of rear result to obviate was direct which were too pans floor compartment dispose of this Point undertaking to In cut down to had to be long and therefore we the concessions of the de- take note of size; to support there is no evidence use of plain- it “made some fendant he testified in de- While other conclusion. for few weeks tiff’s fixture tool ” repairing tail- tail the labor involved 1971; May was between period was torn weatherstripping gate where 1971, 27, and that should July 1971 and with tail-gate when it was raised off reversed, judgment trial court clearance, was ad- no evidence insufficient judgment of time consumed duced as to the amount $500.00, has which defendant amount of operations. these court, We into should be ordered. tendered conclude that it conceded also he was Gregory’s testimony Mr. was that evidence, defendant, that the own shop job whose inspector for the tail-gate created type new “clam” “dings” “high required mark-up that he caused seri- wagon 1971 Chevrolet station in the course by parts sustained spots” problems. production ous Part of shipment as well as “door-fits.” safety and with job passenger was involved presented evidence was Plaintiff’s weatherstripping, with him- through testimony by “Federal Motor Vehicle Standards” Edward A. employees: and six fellow self Nations, Moore, compartment back Al- seal the Virgil Gregory, Burrell gas, dust keep monoxide out carbon Tucker Howard Jenkins. vie One, Inc., Hangar take, faith; (1891); good v. United States neverthe- failure use nor 1975) theory (N.D.Ala. less, F.Supp. was con parties 64[1] tried case gross dispose mistakes shall cerned “Fraud or such and we announced Carlini City grounds. Anto see of San to fraud.” And on those Co., Tex. v. McKenzie Const. nio “gross (1941), term mis- definitions of the the decision For other S.W.2d where 996[13] People’s attack, United States Bank Gilson engineer-arbitrator take” see under of an *9 al., 1908); (8th v. misconduct, McMichael “fraud, gross F. et 161 286 Cir. or mis what not (1896); 478, 663, Webster, N.J.Eq. 35 A. 666 54 take.” 638, 332, Gates, N.W. 87 Mich. Malone and moisture. He was to make sure the the weatherstripping anee and did not tear weatherstripping be- in the “mill” properly During was installed out. 1971 he worked area on defective shipped clam-type tail-gates fore automobile was to the and seldom, according It was very employed wagons dealers. to while so observed station wagon weatherstripping a out of testimony, they got station where was torn retaining which did not have the When this it weatherstripping happened slot. job moving raked off. He estimated that at back initially quite tail-gate was in least wagons February July, 99% station had to be the “mill.” Between and week, refit problems days because of with the thir- weather- he worked seven but on stripping day. cross-examination he re- teen to thirteen a-half and hours duced this estimate sta- Sixty-four “Roughly repair to 60%. 90%” of this was work on tion were wagons produced per wagon and in day, tail-gates station the “mill” area. although they having Although were this assigned weather- he was there to work problem stripping permitted mostly weatherstripping, on occa- he did through on go assembly line and then work sionally something on else. When repairs “wagon asked, cross-examination, held in He up alley.” on whether his overtime between and February tail-gates gen- worked estimate referred to 90% July, seniority eral, regardless whenever his entitled of what the fit to, he every was, him but did not in overtime put replied: he month he testify and did not that his over- fit, When your tail-gate “A. doesn’t it repairing time was or weatherstripping automatically tears-up your weather- hanging tail-gates. several he On occasions stripping particular on that It model. go “wagon alley” where he observed down, hit it coming-up would or going employees refitting tail-gates. According you up go when pull it would witness, plaintiff’s suggestion elimi- hit tail-gate.” problem raking nated the weath- off the He further testified that when the erstripping because of lack of clearance. close, “they” was hard to would throw this Nations, Burrell L. hung tail-gates by-pass plastic down and it would operation He described the hang- rollers, and when this occurred the channels ing tail-gates and between February also had to He seen repaired. be July, he night overtime every worked on both weatherstripping right torn only and worked on station refit- wagons. the left side of the station In 1971 ting tail-gates. He em- also observed other $15,500; approximately he earned ployees working strip retaining $8,900. earnings The difference in resulted time, the tail-gates during this and estimat- from the overtime he worked in 1971. ed at 20 to Group least 25 in the in which he When he worked seven men from overtime worked also worked overtime. His him fifty his shift worked with as did income from overtime work on “defective shop from the trim and ten sixty painters. $2,000 on station tail-gates wagons” was McGuire, body Robert man who worked $3,000 more than he earned in either on after had been bodies assembled or 1972. After plaintiff’s suggestion alley” painted, “wagon testified put stopped into use overtime and he did large enough 12 to 15 accommodate get go back “mill.” simultaneously. wag- cars When a station (unrelated to Virgil plaintiff), “wagon alley” Moore be a repairman shop in the the second team trimmers and body doing men shift, actually shop worked trim work “was needed to done.” whatever where the weatherstripping employed “wagon alley” installed. When he was He plaintiff’s sug- too testified that after tail-gates” worked on “defective gestions wagons doing into use there was clear- whatever was to be *10 12 to a a week. day, days work on worked 13 hours
done, not the same he did do but he in the “mill” he never on. What When he worked he worked wagon each station having to do with anything worked on problem involved. depended upon the weatherstripping tail-gate in front of the wagon with station frequently He saw a loosening The itself. His work involved torn out. tail- weatherstripping of his in spend He did not all time operating properly bolts. gates which were not “yard” repairing If the “hold” or in the sta- problem. a quite “in or out” created wagon tail-gates. far, you raised the tion “in” too when they were weatherstripping would tail-gate the Jenkins, inspector relief in the a Howard out; far, air if were “out” too torn problem that the with shop, testified body during Although top. in the would come re- weatherstrip the clearance between “defec- repairing 1971 he worked overtime fre- tail-gate and the occurred so tainer “ weath- which involved “torn tail-gates” tive . so they got many . . quently . .he could bad fits . erstripping and throwing them in the was hold average estimate of an give too they got them out of the hold. When tail- working defective spent of overtime ”5 ‘yard.’ in many, they put them out of the weather- tearing out due to the gates “wagon job alley;” He never worked a repair of He testified that stripping. did not know purely inspecting. was He tail-gate could take from wagon station whether, suggestions were plaintiff’s after hours, upon the depending toup minutes use, weatherstripping problem into repairs. nature solved; all he knew was that in was gates coming “the better.” body shop testi- this witness On cross-examination primary performance His concern work in the “mill” fied that his overtime space as was the inspector he his duties cars passenger confined to was between the to remove the had occasion infrequently was weatherstripping before the repairing tail- retainer weatherstrip retainer the flush installed. He with gate. problem did have the tail- part of the exterior condition fa- was most Defendant’s evidence which which was quarter-panel and the gate to those addition vorable to or out” being the striker “in caused hereinabove, included mentioned previously To best of engaged the lock. when that even Lance testimony of Charles a con- he never encountered his recollection disbanded there group was after the rework between the involving space dition or four hour occasionally be a three tail-gate at weatherstrip retainer compartment run”—when rear period—“a bottom, rear nor with com- hand right appear. long did which were too pans stamped too which were pans partment off they were sheared happened, this When long. de- Quackenbush in the cowl cutter only body shop. It Tucker, partment of metal finisher Alvie G. pan was too compartment the rear a few when working repair, saw who was developed. that the clearance weatherstripping long where the first opinion plaintiff’s gave the He working in torn off while he was condition, al- helped suggestion He worked on tail-gates. fix helping “mill” use, suggestion saw the first though so doing while “damaged tail-gates” he ever saw he denied that of his by gate-hanger. Most was assisted line operation where he second in the “mill” spent time was hand, pending repair. “yard,” the other “hold,” discern from so far as we can 5. The held when record, department an area where vehicles were in- an area near the alley” “wagon assembly were full. line “hold” or vehicles volved where needing repairs the line and held were taken off
731 opined time. that plain- at He also jury also believe that the could have found tool provided tiff’s “saved the of work of that plaintiff’s space one tools the re- helped man.” He knew the tool him in quired period, the during otherwise body shop. have use defendant would not continued to them. plaintiff’s Both evidence as well Bloemke, Frank Engi- Senior Production was to the evidence effect neer, had plain- testified that he discussed man,” plaintiff’s saved “at least a full tools first Mr. Poling tiff’s tool with and Mr. and we believe from evidence that Lance, plaintiff’s superiors, they and that are jury they could find that “full man” him told felt tool “was doing repairman talking about was from job area,” in that and that despite his was the and body shop supervisors since it recommendation that not be adopted, shop the foreman of that who this made using continued it on the second shift. Co-ordinator, Mr. report Suggestion to the Tisoto, case, Mr. the defendant’s during Tisoto, in to his response inquiries. How- that a gatehanger testified earned $4.00 ever, there is no evidence in the record week, an hour for a 40 hour or a total $5.00 concerning earnings of a repair- weeks, for four or a $800.00 total of man saving from which that can be arrived $2,400 for a period.6 three month The only testimony wages at. relative to
was that of Mr. Tisoto and he testified concerning wages gate-hanger. of a V. Nevertheless, believe We now we that from the plain consider whether tiff evidence the jury reasonably adduced sufficient evidence that could conclude de suggestions use of that when weatherstripping fendant’s resulted in torn benefit which The out of the retainer was measurable. term because of “measurable” has been defined as: the lack between “la. ca of clearance the weather- measured, pable being great b. enough strip retainer and interior of the lower be worth consideration.” And the portion tail-gate, term it was necessary “saving” has been as: defined “the act or remove the tail-gate, replace the weather- economizing.” instance of Webster’s stripping, rehang Third and then the tail-gate. New Dictionary. International The Plan evidence was this was a time-con- terms, no contains definition of these suming job so we and re- number of must assume that pairmen, these terms were intend and a gate-hanger trimmers employed ed be their common correct problem. and ordinary meaning. Plaintiff’s was that evidence 8 station
We conclude
the foregoing
wagons
evi-
produced
each hour or each
dence,
shift;
and the reasonable inferences to be
per
a total
since the
day,
therefrom,
derived
there was sufficient sub-
plant was
two shifts a
working
day. The
stantial evidence
jury
for the
concerning
find that
evidence
the number of station
the defendant did
into use
plaintiff’s wagons with raked-off weatherstripping
suggestions
7, 1971,
May
repaired
clear,
between
which
July
had to be
27, 1971, for the
purpose
affording
this is due
fact
evidence
requisite clearance between the weather-
failed
distinguish
between those station
strip retainer
and the interior of the station
with
wagon tail-gates on
models. We
clearance
the weatherstrip
between
retain-
Although plaintiff
records,
equalization
had marked as Exhibit
overtime
the Exhibit
bargaining agreement
Wage
#11 the collective
never
evidence.
be-
received into
rates con-
Body
agreement
employees
tween Fischer
St. Louis Plant G.M.C. and
tracted for in the
for the
pages
No. 25
Local
United Auto Workers of Novem-
of the defendant
out between
set
19, 1970,
agreement
ber
it in
used
direct-examination
44 of said
cannot
therefore
con-
Moore,
plaintiff,
of Mr.
reference to
sidered
this court.
least,
portion
interior of the lower
er and the
reduced it on the second shift at
proving
from those which
far short of
had other
evidence falls
benefits”
tail-gates”
enjoyed
The term “defective
defendant
“measurable
problems.
Plaintiff's evidence on over-
indiscriminately
plain-
used
both
therefrom.
circumstantially
pin-point
time does not
nor
counsel and the witnesses. Plaintiff’s
tiff’s
*12
wag-
that
was attributa-
too
that the 1971 station
establish
the over-time
evidence
ble to the
raking
weatherstripping problem
had
other than the
off
problems
ons
weatherstripping
any certainty
which had to be
but rather
leaves
to
of the
jury
speculate
point.
to
on that
We hold
alley.”
repaired
“wagon
plaintiff
that
produce
failed to
substantial
hinges
case
plaintiff’s
Much
evidence that
was benefitted
defendant
put
by
of overtime
defendant’s
measurably by
plaintiff’s sugges-
the use of
however,
he
distin-
here
fails to
employees;
tions.
spent
repairing
on
guish between overtime
problem his tools were meant
particular
problems with the
and other
in-
correct
VI.
tail-gates
of the
which resulted
stallation
cogni-
believe
plaintiff
We
that
etc. One witness
improper hanging,
zant that
the evidence he
at trial
adduced
put
plaintiff’s tools were
testified that once
he
subject to
attack that
stopped altogether.
into use his overtime
that
did not make
submissible case and
over-
put
testified he
Another witness
by
response
is
his
both
this
best evidenced
year
July
time until the end of the model
court
argument
his brief
oral
this
plaintiff’s
stopped
If
tools
argument
to that attack. The thrust
apparent
then it is
that
problem
clearance
deprived of record
appeal
is that he was
spent
put
after
were
into
any overtime
which
have aided him
evidence
least after
those station
use —at
meeting
on the issue whether
his burden
to the
produced prior
been
tools’
had
recipient
defendant was the
of benefits
not
had been corrected —could
employment
This,
argues,
he
which were measurable.
spent
repair
of weather-
have
doc-
entitles him to the
of the
application
stripping raked off because of the lack of
suppres-
trine of
or
“spoliation, destruction
strip
between
retainer
clearance
documentary
physical
or
evidence.”7
sion
tail-gate. Necessarily
the interior
legal
application
The
of this
basis
some
repairs
those
be because of
maxim,
plaintiff,
according to the
is
prob-
other
with the
disassociated
23,1972; that
August
this suit
filed on
intended to cor-
plaintiff’s
lem
tools were
23, 1972,
removed
September
it was
rect.
and therefore the defend-
the federal court
plaintiff’s
claim
although the evi
ant had notice of
We conclude that
records,
if not earlier. Certain
is
the defendant
that date
dence
uncontradicted
helped him es-
argues
he
would have
plaintiff’s suggestions
into
on its which
use
de-
case,
destroyed by the
or
tablish his
assembly
body shop
line in the
correct
enti-
thereafter,
he is
and therefore
clearance between the
fendant
proper
maintain the
the evidence
presumption
to the
and the interior of
tled
retainer
establish
destroyed would
Chevrolet which has been
portion
the lower
Alternatively,
just.
wagon tail-gate
thereby
either
demand
destroyed,
if these records were not
problem certainly
argues,
this
or
totally eliminated
participating
upon
any
employee
we
7. We
not called
to decide —and
do
other
are
impliedly
could
whether the defend-
decide —whether
the defendant
in the Plan
ascertain
enjoyed any
requirement
of a
benefit
use
with the
it es-
ant
measurable
was burdened
pursuant
system
record-keeping
the terms
submitted
tablish or maintain
whereby
Plan.
Plan
either it
under the terms
hand,
of these
none of these
suppressed
and either
offered evidence that
would contain that
information.
finding
him to a
records
circumstances entitles
whether, on
The issue to be decided is
part
“bad faith” on
of the defendant
evidence,
is entitled to
basis of
and the Committee.
doctrine.
spoliation
the benefit
argument
replies
defendant
were rec-
equalization records
Overtime
contending
there is no
that it
evidence
kept pursuant
to be
ords
possessed any
ever
records which would
bargaining contract with the Un-
collective
savings
have shown
use of
measurable
worked
ion so that
overtime
suggestions and therefore
would be
to assure that
employee
posted
spoliation
inapplicable.
doctrine of
equitably
among
overtime was
distributed
*13
Benton,
Missouri, since Pomeroy v.
departments.
of the
employees
various
(1882),
Records referred the course of wagons with the records, equalization trial included overtime were used to suggestions correct. (also inspection as in- records referred to records, spection tickets), payroll time (or records) Inspection inspection Tickets cards, records, salvage and time studies. by which are an inspector are tickets made produced None of these were trial at when he “knocks-down” a vehicle for some although either party testimony relative Although no one testified detail repair. record, their contents came into the and samples what these records contain and no conflict, testimony oftentimes said was in produced of such records were either dependent upon whether de- that an party, Gregory inspec- Mr. testified plain- fendant the evidence. adduced wrong tion ticket would show what at tiff contends that least some of these car, fit,” g. “gate with a e. and served the records time would have entries of the device, so that purpose quality control tail-gates spent well as number of when an item showed tickets up repaired which had of the to be reason “they” back to the frequently would come lack of clearance between the involved to find department foreman retainer the interior of the witness According and to this these why. out the “Federal Motor tearing required by resulted in off records are Defendant, kept every on the other Act” to be weatherstripping. Safety Standards sequence might 1) as it is manufac- rise time give vehicle studies are: years beginning year tured for a of five and are of each model where there period kept According operation on microfilm. Robert would be an which was different McGuire, show what a time preceding year study these tickets would from the bring up repair operation work was to done not how made of the files but date, 2) to amount of time overtime or time was ascertain the much work consumed required perform function work making repairs. He testi- setting thereby up regroup assist get repair job fied “. . . when we we operations to take into account time values. ticket, repair at repair look we October, 1971, a testified that time He items noted as the inspector, defective study tail-gate hang- had been made on the and I know we all involved in tail- encompass ing operation but ad- gates.” justing, refitting repairing of tail- During defendant’s case Mr. Lance testi- gates. inspection fied that there is an ticket Production records are those records Hare, Mr. who was every produced. which show number of station Inspection, Foreman testified General asked, in an hour. When Mr. produced inspection tickets were retained for the somewhere, Tisoto testified someone plus two year years, current model but that *14 a have of what defendant’s copy should the the period tickets for covered in this during was production disposed of. He case had been nor he when this testify asked occurred. ex rel. Louis Plaintiff relies State St. would indicate what defects were They Walsh, County Company Transit written-up, they repaired, that court, (Mo.App.1959) where the S.W.2d inspector off,” “bought and that the it i. e. ques where the prohibition proceeding in a the He passed inspection. car denied photographs certain taken tion was whether the show the of length that ticket would bus at operator the of relator’s motor by en- repairing time consumed the defects subject to of an accident the scene tered on the ticket. He confirmed the fact were, depend discovery, and whether that the these tickets were period required spolia The were taken. upon why they ed regulated the fed- by to be maintained was case into the because at question tion came government. eral deposition operator’s of the bus taking the the why photographs was asked when he that time studies Gregory Mr. testified taken, relator had instructed were whether an by assembly experts were made to see if them, part it was or whether of him take do more or if the employee could work them, the relator’s counsel duty his to take performing particular number of men questions. the instructed him not answer function could be reduced and same court, l. c. 717 said: S.W.2d number. From performed work a fewer photographs studies, testified, hang- question why “The as he the cost these fact, question These were was a be ing tail-gate could determined. taken be In respondent. the Industrial determined performed studies were pleads that because according respondent to Mr. return Department Engineering the evidence suppressed the relator purpose determining for the Tisoto taken he the reason were pictures do certain employee it takes an time evi- indulged presumption a car. Ac- production in the function dence, have been suppressed, if not Barth, depart- cording to Mr. Carl E. and would have favorable employed he is as methods ment in which photographs were when- revealed “time studies conducts these analyst opin- are of the privileged. be fact not We dictate that the circumstances ever under the circumstances ion that the circumstances Among done.” gates weatherstripping to in- with the rubber respondent case the was entitled style tail-gate on the reach off the clam dulge presumption, such a and to raked wagon. 1971 Chevrolet station photographs conclusion that the not make taken for a reason which would tickets would inspection While long It has been the privileged. them repairs show what before spoliation state that rule in this at passed by inspectors be vehicle would rise to an suppression gives of evidence plaintiff did not de plant, the defendant’s Thus the destruc- unfavorable inference. would enter velop inspectors in what detail evidence without a satis- tion of written to be made on the repairs the nature of the rise to an unfa- factory explanation gives them could examining tickets so that one Similarly, . vorable inference. . . repair whether to be effected discern party possession where one has obtained raking tearing off of the involved fails to physical evidence which he weatherstripping long and how rubber trial, an produce or account for at the repairs in those instances took to make against par- inference is warranted Grego Even Mr. required. where this . . And one conceals or ty. where contents of an testimony as to the ry’s suppresses evidence action warrants such inspection was that an inspection ticket , inference, . . and an unfavorable . wrong what was with a would show ticket evidence of such . suppression “gate-fit.” example chose car admissible as showing an admission many there were The evidence was being defendant was conscious wagon that could cause a reasons wrong unjust.” and that its cause was rejected by inspector because (emphasis supplied). testified for the Mr. McGuire “gate-fit.” equalization testimony Defendant’s overtime was that while plaintiff and records, repair would show the according repair to all of the evidence ticket *15 case, it would not show how this in with work to be done destroyed accord making consumed in the much time was policy them at the destroy Again, while he testified required repairs. year, 27,1971; end of the exact July model “we all in during period this that when ly they put had been was not into he not describe the tail-gates” volved evidence testimony other than Mr. Tisoto’s While there of his involvement. nature that had been told had been they Grego between Mr. disagreement was some “pitched investigating out” while he was long repair as to how these ry and Mr. Hare plaintiff’s suggestion prior to the Commit to be maintained tickets were meeting tee of September 1971. There apparent it is that regulations, federal is no evidence that at that time defendant for at least the current were in existence it liti any knowledge facing that was Sep until years possibly two or plus model so that it was on notice that it gation tember of 1973. its of pursue customary practice should not Anyone these know destroying records. no evidence that the time stu- There was ledgeable practices of business and the cost how much time was which would show dies times would find storing of records these were or hanging tail-gate of a spent smacking it reasonable not of fraud any nor whether were not still in existence defendant, knowledge pend of the with no had even been made as to how time studies ing customary prac to follow its litigation, rehang tail-gate it on 1971 long took these circum wagon tice. We hold that under station because the weath- Chevrolet spoliation inapplica stances the doctrine is was torn off reason of insuf- erstripping records the equalization to the overtime ficient clearance between interior of ble retainer. tail-gate did contain information on even if plain- there evidence that the repairing wagon any station tail- Nor was spent time of control his discovery tools availa- existence of evidence any used tiff adversary might employed to ascertaining aid purpose for the of ble to him case, establishing we are cogni- other him in his of such records than the existence discovery the paucity employed to trial of interrogatories prior filed sometime zant in this case between the (although filing not shown in the date of is lawsuit and the date record) commencement requiring the defendant state man-hours, which, including employed, of trial had it been could over- the number of at time, repair precluded have destruction least spent tail-gate change on or June, 1971, documents and which might in Final some these January between establishing him in whether have assisted Building. responded Defendant Process savings measurable interrogatory by stating enjoy this defendant did reflect The fail- suggestions. were no which would from the use of records spent tail-gate discovery hours on tools under the number of'man ure to use these repairmen nu- because worked on case leads us con- repairs circumstances of this might might items which or repair merous not adduced suffi- has clude wagon rely on repair include station him to cient evidence to entitle tail-gates. supply missing spoliation doctrine case. elements of his any no evidence that
There was
destroyed by
mentioned were
other records
1972 and came to
cause was filed in
This
defendant.
In the interim the
January,
trial
seeking to as-
interrogatories
plaintiff filed
doctrine’s
Although
spoliation
could state
whether
defendant
certain
has
under some circumstances
application
man-hours, including over-
the number of
criticized,8
the courts of
State
changing
tail-
time, spent
repairing
it
in a number of cases.9
applied
have
gates
Chevrolet
However,
it
a harsh rule of evi
since
1971. Defendant’s
January through June
dence,
given
case
prior
applying
means
there was no
answer
seeking
the party
be the burden of
it should
as to
obtaining
information
statistical
showing
prima
benefit
to make a
facie
wagon tail-gates fitted
of station
number
destroyed
missing
the opponent
during
period, and that
repaired
manifesting
under circumstances
records
which would reflect
there were no records
fraud,
Mil-
or bad faith. Brissette
deceit
spent
man-hours
the number of
supra.
only
Not
Chevrolet Company,
ner
requested
name
-Plaintiff also
repair.
*16
proved,
destruction of the records
should
employees
the
or
employee
address of
and
proof
such
as is
there should also be
but
custody
having
defendant
the
or
of the
that
the
the
under
circumstances
available
maintenance
charged
destroyed contained evidence
records
money
showing the
ex-
of records
keeping
seeking
party
imposition
aid the
particular
in
func-
by way wages
pended
the elements of
case.
rule
proving
of the defendant.
departments
and
tions
that
no
discovery
answered
tools Defendant
Despite
range
the wide
reflect
available which would
records
plaintiff
ascertain
available to
Distillery Co.,
Implied
v.
Vincent,
(1917);
Shawhan
Shawhan
Admissions
and
8. McGuire
Conduct,"
445,
(1916);
Spoliation
Stuckes
Mo.App.
197
369
or “Related
45 Yale
S.W.
195
342,
Candy Co.,
Mo.App.
158
138
v. National
226.
L.J.
Buchanan,
(1911); Tracy
v.
167 Mo.
352
S.W.
Company, su
Brissette v. Milner Chevrolet
432,
v. Prendi
(1912);
Haid
App.
747
151 S.W.
Louis,
R.
of St.
Garrett v. Terminal Ass’n
pra;
ville,
552,
(1922); Hunt
292 Mo.
in the Circuit Court from VII. 13, 1975, filed, January when until when it therefore, plaintiff’s evi- We hold According came on for trial.10 present dence has failed to submissible evidence, defendant’s, corroborated whether defendant’s question case on the equalization overtime were de- records “grossly Committee was mistaken” stroyed regular accord with defendant’s good applying to use faith” in “failed practice prior filing of the claim and arriving formula it did in at its award be- prior to the time defendant reason present it fails to substantial evidence cause suspect litigation follow the might jury from which a could find that the bene- *17 inspection action of the Committee. The from the use enjoyed by fits the defendant tickets, which were to be main- suggestions were measurable. government tained the federal for either is there- judgment The of the Circuit Court two whether years depending upon five or cause is remanded fore reversed and the — testimony was Gregory’s Mr. or Mr. Hare’s enter with instructions to Circuit Court have year, correct —after the model in the sum of judgment for destroyed in accord with defendant’s $500.00. filing 10. The record of this cause on 1972 and remand of the cause Circuit shows 23, 1972; petition August defendant filed its for Court on October 1973. September the District removal to Court J., SIMEONE, C. concurs.
GUNN, separate opinion. J., concurs in
GUNN, Judge. reached concur in result
I opinion emphasize but would
majority Commit- Suggestion effect of the
binding The General rules
tee’s decision. Sug- “The suggestion plan provide:
Motors or not Committee decides whether
gestions eligible for awards de- are
suggestions each the amount of
termines Also, adopted suggestions.” paid
award for Suggestion
“Decisions Committee
are final.” foregoing give Suggestion rules
The making latitude in
Committee considerable majority, As noted awards. no apparently caprice involved finding no measura-
committee’s decision in awarding
ble benefits and Hence, making under the rules
$500. final, no basis exists
committee’s decision altering for its award.
here Pleban, Greenberg, & St. John London C. _, Petitioner-Respondent, B. Johnson, Louis, Springfield, K. Gregory t respondent-appellant. _, Respondent-Appellant. L. Fiorella, peti- Springfield, Nicholas R. tioner-respondent.
No. 10222. Appeals, Missouri Court of PER CURIAM: District. Springfield modify custody This is an action to Aug. 1977. a decree of divorce rendered provisions Rehearing or Transfer Motion for County on by the Circuit Court of Greene 9, 1977. Sept. Denied granted original decree June son, E._, B. parties’
custody of *18 -, mother, the fa- _, and L. ther, the sum pay $150 was ordered support. Subsequently, per month child